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TheSilentNumber writes "A member of Students for Free Culture has just published a thorough and detailed post calling for the retirement of the non-free clauses, NoDerivatives (ND) and NonCommercial (NC). They state, 'The NC and ND clauses not only depend on, but also feed misguided notions about their purpose and function.' and that 'Instead of wasting effort maintaining and explaining a wider set of conflicting licenses, Creative Commons as an organization should focus on providing better and more consistent support for the licenses that really make sense.'"
Note that the opinions expressed are of the author alone and not necessarily the entire organization. More info on the process of revising the CC licenses.

IANAL, but derivative work has a specific meaning and the web page wouldn't be considered a derivative work just by including an image from a CC-ND source. If you're using text and mixing it in with other text that would likely be derivative and as such be a violation. Although that depends upon how exactly you're using the text, you can as always use it as a citation subject to the usual rules.

I think the licenses should stay, they're not as free as opening them up for any and all use, but those licenses are useful for both people producing and people consuming work and should be available to the producer. Otherwise somebody else will just take the license or write one that's substantively the same for use.

The ND clause survives on the idea that rightsholders would not otherwise be able protect their reputation or preserve the integrity of their work, but all these fears about allowing derivatives are either permitted by fair use anyway or already protected by free licenses.

Counterexamples:

1. I write an opinion piece for my local paper on why G.W. Bush was the worst US president in history. Under any free license, someone else can write a revised version in which my opinions are all changed, then distribute it with attribution to me and the reviser. Fair use doesn't allow this. An ND license does what I want, which is to prevent this misrepresentation of my opinions.

2. Alice Randall wrote a book called The Wind Done Gone using the setting and characters of Gone With the Wind. Margaret Mitchell's estate sued Randall and won. If Gone With the Wind had been distributed under an ND license, this would have been prevented. Under a free license, it would have been allowed. Fair use doesn't allow this use.

3. I make coffee mugs with Harry Potter characters on them and sell them on the internet without paying a royalty to J.K. Rowling. If Rowling had chosen any free license, this would have been allowed. With an NC license, it's prohibited, which is what she wants. It doesn't fall under fair use.

Most importantly, though, is that both clauses do not actually contribute to a shared commons.

Yes, this is blindingly obvious. In all three examples above, the original author had no intention of contributing to a shared commons.

Perhaps the silliest thing of all about this is the belief that people can somehow be prevented from using NC or ND licenses. Nobody can prevent this. The CC organization could "deprecate" them, and this would have absolutely no effect.

First, if you need actual legal advice to this effect, consult a lawyer.

If you excerpt content within the restrictions of Fair Use, a license is not required. So no, your content is still yours.

Creating a work which is derivative of multiple other works means you need a license to each work. If those licenses are incompatible, you will, obviously, be committing copyright infringement. If one part is GPL, and another part has a license saying "you cannot show anyone your code", you can choose which to violate -- the GPL, or the other license -- by either providing your code under the GPL or refusing to distribute your code with your work. You could resolve this by ceasing distribution of your work, or working out other licensing terms with the owner(s) of one the works from which your work derives. You could also choose to violate both licenses by distributing some, but not all, of your code with your work. There is nothing magical about licenses that forces you to do something -- failing to follow them simply means you are committing copyright infringement. You can never be forced to license your work in a way you don't want to (though you may be liable for fines for infringement, in this case).

A CD could not possibly be considered a single work, unless it's one long audio track. That's like saying "if I download open office to my hard drive, are my family pictures now GPLed?!?!?!"

CC should craft a NC flavor that says you don't want it used commercially in general but are willing to license for free under alternate terms. This would probably be enough to make Zynga skip it while still allowing indie-game-maker to pop you an email.

I want CC No Commercial (NC) and CC No Derivatives (ND) clauses removed because they don't really support free. Works don't enrich the commons unless you can do whatever you want with them. Also, the NC clause should be eliminated because it is really hard to define commercial. Does commercial mean you can't share a file on a website that has ads?

My opinion is that a little free is better than not free. I should be able to donate my work to the commons without expecting to see it on a billboard. Which has actually happened. In terms of the commercial example, I think we can all judge when things move over the line from donation based to blatantly commercial. The good news is that it is up to me as a rights holder to enforce the license. I can allow uses of my file in ad supported web sites, but object to my song being used in a local TV ad. Yes, there are ambiguities in everything. That's life.

If you object to these licenses, don't use 'em. Or anything with them.

One of the worrying things about using CC material is: What is a derivative work?

That is an excellent question and one that directly relates to my use of the 'NC' licence. When releasing educational materials I'm happy with everyone getting to use them for free and sharing them with others but I do not want to see them get incorporated into a text book or used as supporting material for a textbook which publishers are charging students obscene prices for (especially as those prices are one of the primary motivations for making the material in the first place!).

While you might be able to argue that a textbook which incorporates pages of text and/or questions is a derivative work many publishers now offer flexible publishing options where you can pick and choose what chapters and sections of a book are included for your course. In such a case does all the book count as a derivative work or just the sections or chapters where they use CC content adapted to the book?

While the term 'non-commercial' might be ambiguous so is the term 'derivative works' so if ambiguity is an argument to drop the term both should be dropped. Personally I thing the argument for dropping the 'NC' clause is more to do with the author's political persuasions than any other argument given. I think keeping the option to give us a choice is important. Looking at open source there is clear support for both BSD-like and GPL-like licences. What is nice with CC is that it accommodates both camps under one umbrella. If they drop the 'NC' I predict a licence fork to fix the omission.

They already have that. It's called "NC". Surely you'll say "No, NC doesn't imply that"... but that's because people are myopic.

ANY property can be licensed under an alternate license. You just have to contact the property owner.

weird_w wants to license it in general under NC to prevent the general case of abuse, and to prevent abuse by entities he doesn't like... great.

If a small shop still wants to use the work, they already have a built-in remedy: contact weird_w and ask him for the same work under an alternate and/or negotiated license (closed/for-pay, closed/for-free, open, etc.). There's nothing about distributing _YOUR_ work under the GPL or CC or any other _general_ license that says you can't also simultaneously distribute _YOUR_ work under another license.

It's your work. Do you want you want. Distribute it under a GPL or OGL variant to people who's last name starts with A-M, and distribute it under CC-SA to people who's last names start with N-Y, and distribute it under CC-NC to people who's last names start with Z.

Or, distribute it under CC-NC to companies named BANDERSNATCH, and distribute it under CC-SA to everyone else.

It MIGHT make it harder to defend your property in court (I'm not a lawyer, consult one), but there have, historically, been lots of companies that distribute their work under multiple licenses. The first one that comes to mind is the old Ghostscript, which was under one license for the latest and greatest, and then a different license for older versions. Or FUDGE, which (at least for a while) was under an artist's license OR the OGL (your choice).

Which is why the Students for Free Culture wants to make it more daunting for artists to migrate to free licences by making it an 'all or nothing' deal. Brilliant way to shoot everyone in the foot, guys.

Activist movements need some shorthand for shaming idealists who rush the group's goals without consideration for gradual pragmatic change—like a dunce cap, only larger, and with flashing lights.

I guess that would work within the realm of the free culture movement, but I was thinking even more generally. Any cause you can name—environmentalism, multiculturalism, gender equality, whatever—has overeager radicals who don't want (or know how) to balance their vision with public acceptance. They may not even be wrong about what they're talking about (I think a lot more people would agree with RMS in theory than in practice, for example), and yet they can do a horrendous amount of damage to their own public image. It's daunting to imagine how far back society's been set by the misanthropy of overenthusiasm.

I'm one of the guys behind an open source music hardware project (meeblip.com) and strongly against NC/ND restrictions. They exist out of fear and stand counter to the central tenant of open source (*anyone* should be able to study, modify, distribute, make and sell the design or a derivative work based on that design).

There is natural conflict in the development process, because after spending hundreds or thousands of hours creating something cool, it's hard to let go. This conflict is especially difficult if you decide that releasing your project as open source is the best way to distribute it and get others to use and extend it. The first knee-jerk reaction is to attempt to retain as much control as you can -- "Yeah, it's open source, but I don't want you using it commercially or as the basis of something else." -- If you follow through with that restriction, you're essentially releasing source code or design files for a closed project. It's open in name only.

Once you recognize that your biggest fear is actually the idea that someone will take your idea and do a better (or more successful) job at it than you have, you can begin to step forward. The first step is to understand that if you have a really good idea, someone will clone it. In fact, it's likely that 15 people will clone it. And that's good, because they might do a better job and there's nothing from stopping you from incorporating their good ideas into your project (a derivative work of a derivative work!). Whether or not you explicitly grant permission for someone to use your ideas, rest assured that they will. To that end, it makes the most sense to release with a CC Share Alike requirement that ensures that your ideas and their derivatives stay public and accessible to all.

Say, I publish a book under my own name. I don't care if people reproduce it on their websites, and I don't care if commercial enterprises included it into their own collections. Hey, it's not the money I'm after, so they can sell it too, if they want. What I do care about however, is that nobody comes and starts modifying (adding to, modifying or deleting from) that text... because my name and reputation are associated with it. That's what ND is for. Even if CC removed ND from its list of options, nothing prevents me from releasing said book under an ND-like condition nonetheless.

I'm someone who writes and publishes music under CC-NC-SA. Since I'm doing artistic stuff rather than engineering stuff with it, it's possible my perspective is a bit different, but I suspect the argument will apply just as well.

I'm not afraid someone will do it better. I'm afraid that some organization will take what I've given away, copy it, make a token modification, and copyright it, thus turning the work that I made as a gift into something that has a price on it, all without paying me a dime. They might even be able to turn around and issue DMCA takedowns and sue people for performing my work, claiming that they're really performing their version rather than my version. They've now taken free artistic work and made it no longer free. In other words, they aren't really adding any value at all, just taking value from me and from the public and declaring it theirs.

An illustrative case: Pete Seeger took biblical verses and wrote the song Turn, Turn, Turn [wikipedia.org], releasing it into the public domain. Several other folk musicians performed it, and it gained in popularity, and Pete finally recorded it in 1962. In 1965, the Byrds recorded it, and now most people who've heard of the song think that they wrote it originally, and some others think Bob Dylan wrote it. Had Pete Seeger not been a relatively well-known figure, it's quite possible his contribution would have been forgotten entirely.

If somebody wants to take my stuff and use it in a commercial project, releasing it under CC-NC-SA doesn't say they can't do it, it just says that they need to get in touch with me and work out some sort of arrangement. In practical terms, it means that if someone else wants to sing my song among friends or something, they can just do it, but if somebody wants to put it on an album or book or something like that, we need to talk about it.

I'm one of the guys behind an open source music hardware project (meeblip.com) and strongly against NC/ND restrictions. They exist out of fear and stand counter to the central tenant of open source (*anyone* should be able to study, modify, distribute, make and sell the design or a derivative work based on that design).

Sorry,

The key assumption in your argumentation: "open source software/hardware" and "open artistic creation" are identical. I assert that there's a fundamental difference between the two:

1. software/hardware is an engineering problem, and the results can be improved, polished, maintained over time in sync with technological advances.

2. By contrast, an artistic creation is meant to transmit/produce emotions/feelings/sensations etc... For some creations, the author may feel that any change in the expression would alter too much the intentions s/he had when creating it Say whatever one may, no-one - maybe not even the author - can "improve" on a specific artistic creation

Yes, you can try to use an existing creation to build something equally appealing to the people, but in doing so you are going to dilute the original authors intentions (if not outright destroying [nydailynews.com] them entirely).

Pink Floyd's attorney Robert Howe describes the band's albums as "seamless pieces." No-one who's heard 'The Dark Side Of The Moon' would quibble with that.

You know, I do agree with that and not only in respect with The Dark side of the moon.

My opinion is: the "open source" or "closed license" character for an artistic creation is irrelevant - the creator's wish is to be respected. Anything else would show a lack of respect for the original creative act, which I would say is more dangerous for society than the potential loss of another derivative creation.

Pretend, for a moment, that society has to pick a number on a scale from 0-100. Right now, public opinion on average thinks the number should be around 40, and mainstream media generally considers it acceptable to discuss proposals that involve numbers as low as 25 and as high as 55. Now, suppose there's well-funded group A that thinks this number should be 0, and a well-funded group B that thinks this number should be 80, and both have legitimate and reasonable-sounding arguments for holding their respective position. If group A adopts the moderate approach, they'll advocate for 25. If group B adopts the extremist approach, they'll advocate for 80. If both groups have equally convincing arguments and can get their message out equally, the public opinion will shift not from 40 down to 25 but from 40 to 52, because group B has successfully convinced a significant number of people that it's reasonable and socially acceptable to think that numbers in the 55-80 range are right.

A practical example of this in action: 20 years ago, gay marriage or gay civil union was unthinkable in the US. In general, 'respectable' liberal political groups didn't want to touch the issue at all, because what was considered the range of acceptable opinion was a spectrum from "Ok, the police shouldn't be able to arrest gay people and throw them in jail for being gay" to "Beat 'em up and force them to be straight". But the less respectable gay rights folks kept up the pressure for gay marriage to be legal, as complete extremists and nutjobs for at least a decade. And by doing that, the idea started entering popular culture, and eventually got some political decisions going their way, and now is legal in many places and has the support of over half of Americans.

And perhaps they're not so nice and decide to ask for statutory damages.

... in parts of the world where the justice system is punitive, and statutory damages exist.

Most of the world would follow the Ius Commune principle that no one should benefit from a crime -- neither the defendant nor the plaintiff -- and damages are limited to actual damages and not a single kopek more.